Environmental Impact Assessment and Strategic Environmental Assessment DG ENVIRONMENT EUROPEAN COMMISSION

1. Environmental Impact Assessment and Strategic Environmental Assessment DG ENVIRONMENT EUROPEAN COMMISSION

2. Scope of the Presentation • The environmental assessments pursuant to the EIA and the SEA Directives • Terminology • The ECJ Interpretation of the EIA legislation

3. Environmental Impact assessment = EIA – PROJECTS (public & private) Strategic Environmental Assessment = SEA – PLANS & PROGRAMMES (public) Both Directives concern the assessment of the effects on the environment Terminology

4. Environmental Assessment Policies Not Covered by legislation Plans & Programmes covered bySEA Directive (2001/42/EC) Projects covered by EIA Directive (85/337/EEC, 97/11/EC, 2003/35/EC)

5. The EIA process Elaboration of a project Beginning Request for development consent Information on env.impact (EIS) Consultations Decision Approval of Project End of process Information on decision

6. The SEA process Elaboration of P/P Beginning Draft P/P Environmental report Consultations (environmental report & P/P) Decision Approval of P/P End of process Information on decision

7. Legal Framework for the EIA • Directive85/337/EEC of 27 June 1985 • Directive97/11/EC of 3 March 1997 amending Directive 85/337/EEC • Directive 2003/35/EC of 26 May 2003 alignment to UNECE Aarhus Convention

8. (Art. 2.1) Environmental Impact Assessment Definition: “projects” • The execution of construction works or of other installations or schemes • Other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources

9. (Art. 2.1) General Objective The EIA Directive applies to: • projects likely to have significant effects on the environment (by virtue, inter alia, of their nature, size and location) What are these projects subject to? • a requirement for development consent • anassessment of their effects When? • before consent is given

10. (Art. 3) What assessment? EIA must identify, describe, assess likelydirect and indirect environmental effects of activities on: • human beings, • fauna, flora, soil, water, air, climate, landscape, • material assets, cultural heritage • the interaction between those factors.

11. Annex I projects Annex II projects Mandatory EIA “Screening” by Competent authorities to decide if EIA needed or not (Art. 4) What kind of projects?

12. … and some EIA terminology • Competent authorities Decide on development consent applications. Are notnecessarily environmental authorities. • Environmental authorities Have specific environmental responsibilities. Are consulted by competent authorities. • Environmental information Submitted by developers to competent authorities. Sometimes called « environmental report », « environmental statement », or « environmental study ».

13. EIA procedure Screening Only for Annex II projects Scoping Upon request of the developer Environmental information The “Report”-EIS Public, Env. Authorities... Consultation on environmental information Decision Takes account of env.info and consultations

14. Answers the question: ’Is an EIA required?’ (only Annex II projects) The guiding principle: are there significant environmental effects likely? If ‘yes’ EIA needed If ‘no’  no EIA needed Screening Scoping Env. info Consultation on env.info Decision (Art. 4) Screening-1

15. Determination through: case by case examination and / or thresholds or criteria Annex III criteria must always be taken into account IMPORTANT:Screening determination made available to the public Screening Scoping Env. info Consultation on env.info Decision (Art. 4) Screening-2

16. 1.Project characteristics size, CUMULATION with other projects, natural resources use, waste production, pollution, risk of accidents … Screening Scoping Env. info Consultation on env.info Decision (Art. 4) Annex III Criteria-1

17. 2. Project location- environmental sensitivity of area likely to be affected: Land use Natural resources Absorption capacity of natural environment - wetlands, coastal zones, mountain and forest areas, nature reserves and parks, special protected areas on the basis of EU nature protection directives (79/409/EEC and 92/43/EEC), exceeded environmental standards, densely populated areas, landscapes of historical, cultural or archaeological significance. Screening Scoping Env. info Consultation on env.info Decision (Art. 4) Annex III Criteria-2

18. 3. Potential impact in relation to 1 and 2 extent of impact, transfrontier nature, probability of impact, magnitude and complexity duration, frequency, reversibility... Screening Scoping Env. info Consultation on env.info Decision (Art. 4) Annex III Criteria-3

19. Answers the question “what should be covered by the environmental information?” Opinion by the competent authority(who may subsequently ask for further information) By request of developer Before development consent application is submitted Early interaction between competent authority, developer, environmental authorities Screening Scoping Env. info Consultation on env.info Decision (Art. 5.2) Scoping

20. Project description Use of resources, emissions and residues Description of the environment likely to be significantly affected Likely significant environmental effects including: short term, temporary and cumulative effects Screening Scoping Env. info Consultation on env.info Decision (Art. 5) Environmental Information,the “Report”-1 (Annex IV)

21. Forecasting methods & difficulties Mitigation measures Main alternatives and reasons for choice taking account of environmental effects Non-technical summary Screening Scoping Env. info Consultation on env.info Decision (Art. 5) Environmental information,the “Report”-2 (Annex IV)

22. Non-technical summary: Very important element required for the consultations with the public; needs to include a summary of ALL RELEVANT INFORMATION Screening Scoping Env. info Consultation on env.info Decision (Art. 5) Environmental Information,the “Report”-3 (Annex IV)

23. Informing and consulting-1 • Environmentalauthorities(Art. 5,6) • consulted during scoping to say what specific content is needed in the « report » • can express opinion on the quality of the environmental information included in the “report”

24. Informing and consulting-2 • Public concerned(Art. 4,6,9) • informed of screening determination • can express opinion on environmental information provided with the “report” • informed of final decision; have the right to appeal

25. Informing and consulting-3 • Other Member States – transboundary consultations (Art. 7,9) • If the MS is aware that the project is likely to affect significantly other MS or that MS so requests • ASAP / no later than informing its own public • Description of the project, nature of the decision • Including environmental authorities and public concerned in those MSs • Reasonable time should be given to the affected MS to state its intention to participate in the decision-making procedure art. 2 (2)

26. Informing and consulting-3 • Other Member States – transboundary consultations (Art. 7,9) • If the affected MS states its intention, obligation to give / make available pursuant article 6(2) / 6(3) • Obligation to arrange public participation procedure – art 7 (3) • Obligation to enter intor consultations regarding the potential transboundary effects – art. 7 (4) • Margins of discretion for MS to determine the detailed arrangements for implementing art. 7, but public in the affected MS should be able to participate effectively

27. Informing and consulting-3 • Other Member States – transboundary consultations (Art. 7,9) • Overview of the cases in some of the old MS: AT (24), DK (9), FI (24), IE (43), IT (10), PT (10), SE (17), UK (12) • Types of projects subject to the procedure: industrial installations, (offshore) wind farms, gas pipelines, electric lines, railways, roads, thermo power plant, nuclear power plant, waste incineration plant, deep water quay, marina extension etc. • No significant problems reported • Remarks and recommendations: • MS of origin and affected MS should agree on a reasonable timeframe on a case-by-case basis • Establishment of points of contact • Taking initiative and manitaining contact in order to overcome the legal and cultural differences

28. Informing and consulting-3 • Other Member States – transboundary consultations (Art. 7,9) • Overview of the cases in some of the new MS: BG (8), HU (11), LV (7), PL (18), SI (4), EE (10), CZ (10), LT (5), SK (9), RO (8) • Arrangements adopted in accordance with article 7(5) of the EIA Directive (CZ, HU, VG, EE, LV, LT, SK, RO) • Timeframes agreed through bilateral dialogue and consultation • Types of projects subject to the procedure: building or decommissioning NPP, final repository for used nuclear fuel, Northstream gas pipeline, bridge over river, cement factory, water treatment plant, thermal power plant, power station, gold mine, harbour etc.

29. Informing and consulting-3 • Other Member States – transboundary consultations (Art. 7,9) • Difficulties and obstacles reported: • EIAs are carried out in different stages of the project proposal process (e.g.: for bridges or pipelines) • Different time frames at different EIA stages • Language barriers including bearing the costs for translation • Characteristics of the projects and the specific needs of the affected parties • Interpretation of the term “likely” in case that the impact may occur with low probability • Reaching agreement on the potential transboundary effects and the measures envisaged to reduce or eliminate these efects

30. Main provisions introduced by Directive 2003/35/EC-1 • Definition of public and public concerned: “public affected, or likely to be affected by, or having an interest in, the decision making procedure” , including NGOs. Art. 1(2) • National defense projects not automatically excluded from EIA Art. 1(4) • Strengthened public consultation provisions: early in the decision-making procedure, detailed list of information to be provided, reasonable time-frames Art. 6

31. Main provisions introduced by Directive 2003/35/EC-2 • New provisions on public access to a review procedure Art. 10(a) • Information provided to the public on the final decision needs to include information on the public participation processArt. 9(1) • Changes or extensions: • of Annex I projects meeting Annex I thresholds (if any)  in Annex I (22) • of other Annex I projects, and of Annex II projects  in Annex II (13)

32. Conclusions on the application of the EIA Directive • The meaning of the provisions of the EIA Directive is not static • Subject to interpretation by the ECJ • (infringements; references by national courts) • Commission’s Guidance on Interpretation of Project Categories in the EIA Directive.

33. The ECJ approach in interpretation of the EIA Directive • The EIA Directive has “a wide scope and a broad purpose” (Kraaijeveld). • Member States’ discretion is limited. • Consistent emphasis on the likely environmental effects of proposed projects. • Exemptions to be interpreted narrowly.

34. The Kraajeveld case C-72/95 • “The wording of the directive indicates that it has awide scope and a broad purpose.” • Consistently quoted in subsequent cases by the Court (e.g. Bozen, Ireland). • Uniform interpretation cannot be determined by one language. • The role of criteria and thresholds in screening.

35. Ireland C-392/96 • “Thresholds cannot exclude all projects of a certain type UNLESS, when viewed as a whole, they would not be likely to have significant environmental effects. • Small-scale projects can have significant effects on the environment. • Thresholds are to help in screening, not exempt classes of project. • Cumulative effects of projects must be taken into account.

36. Italy C-87/02 (Lotto zero) • MSs have discretion about the methods they use to specify whether a project is subject to EIA. • But this method must not undermine the Directive’s objective. • A decision that a project does not require EIA must contain, or be accompanied by, all the information that makes it possible to check that it is based on adequate screening, compliant with the Directive.

37. Delena Wells (UK) C-201/02 • In a consent procedure comprising several stages, assessment of environmental effects must be carried out as soon as they can all be identified and assessed. • If the effects are not identifiable until the time of the implementing decision, the assessment should be in the course of that procedure. • If MSs fail to carry out EIA, they must take measures to remedy that failure. These might include the revocation or suspension of a consent, or compensation if an individual has suffered harm.

38. Barker Case C-290/03 • “Development consent” is a Community concept & must be given an autonomous & uniform interpretation. • “Development consent” is the decision (involving one or more stages) which allows the developer to commence works for carrying out his project. • In multi-stage consent procedures, EIA must be at the time of the principal decision UNLESS the env effects are not identifiable until the implementing decision • In that case EIA is necessary at that second stage.

39. The EIA Guidance • EIA / SEA Homepage: http://europa.eu.int/comm/environment/eia/ home.htm • Guidance documents and checklists: • Screening • Scoping • Review • Indirect and Cumulative Impacts, Impact interactions

40. Strategic Environmental Assessment Concerns: plans and programmes in the public sector Directive2001/42/EC of 27 June 2001 Applicable from 21 July 2004

41. SEA Directive - Objectives • High level of protection of the environment • Integration of environmental considerations into the preparation of plans and programmes • Promotion of sustainable development by an environmental assessment of certain plans and programmes likely to have significant effects on the environment

42. Art. 2 What is a “plan or programme”? To be covered by the SEA Directive, a plan or a programme must: • be prepared and/or adopted by an authority at national, regional or local level AND • be required by legislative, regulatory or administrative provisions. The definition includes: • modifications of plans and programmes • those co-financed by the EC

43. SEA Directive and the planning process • The environmental assessment must be carried out: • during preparation of the plan or programme • before adoption of the plan or programme • SEA can be incorporated into existing (planning) procedures, or in new ones

44. Definition of plans and programmes Mandatory SEA Screening SEA not needed Scoping Environmental Report Decision making Information on final decision The SEA process Consultation

45. Art. 3 When is SEA mandatory? For plans and programmes: • prepared for agriculture, forestry, fisheries, energy, industry, transport, waste/ water management, telecommunications, tourism, town & country planning or land use AND which set the framework for future development consent of projects listed in the EIA Directive OR • that require an assessment under Articles 6 or 7 of the Habitats Directive

46. When is “screening” required? Who “screens”, and for what purpose? • Member States, to decide if SEA is needed Which plans and programmes (p/ps) to screen ? • p/ps setting the framework for future “non-EIA projects” and “non-sector” p/ps • certain p/ps at local level and minor modifications to p/ps How to screen? • case by case, by specifying types of p/ps, or by a combination of the two approaches • always using Annex II criteria (criteria include characteristics of plans, of their effects, and of affected areas)

47. Key elements of SEA -the Environmental Report (1) Must identify, describe and evaluate: • the likely significant environmental effects of implementing the plan / programme, including • effects on biodiversity, soil, water, air, climatic factors • effects on population, human health, architectural and archaeological heritage, landscape • reasonable alternativestaking into account the objectives and the geographical scope of the plan / programme • alternatives must include the « zero » alternative

48. Key elements of SEA -the Environmental Report (2) • Outline of the plan/programme and relationship with other p/ps • Current state of the environment and evolution without the plan/programme • Environmental characteristics of the area • Environmental protection objectives, how they were taken into account • Mitigation measures • Monitoring measures • Non-technical summary (important)

49. Key elements of SEA - Monitoring • Member States have to monitor the significant environmental effects of the implementation of the plan/programme in order to: • identify at an early stage unforeseen adverse effects • be able to undertake remedial action • Existing monitoring arrangements may be used • Monitoring measures must be covered in the SEA Report

50. Key elements of SEA - Consultations • Environmental authorities • in screening • in scoping • on the draft plan/programme and the env. report • The public • on the draft plan/programme and the env. report